AGOSTO v. SENKOWSKI

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge

ORDER ADOPTING REPORT AND RECOMMENDATION

On December 17, 2003, Magistrate Judge Kevin Nathaniel Fox
issued a Report and Recommendation ("Report") recommending that
the petition of Rafael Agosto ("Petitioner") for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, filed on August 18, 1999, be
denied. Respondent filed an objection to the Report on December
26, 2003. The Court granted Petitioner, now pro se, an
extension until March 19, 2004, to file objections (in response
to a request from his former attorney who subsequently withdrew
from the case). Petitioner has not filed objections to the
December 17, 2003 Report and Recommendation. Respondent submitted
a timely objection to the Report.

In reviewing the Report and Recommendation, the Court "may
accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge." 28 U.S.C.A. §
636(b)(1)(C) (West Supp. 2004). To accept the report and
recommendation of a magistrate judge to which no timely objection has been made, a
district court "need only satisfy itself that there is no clear
error on the face of the record." Johnson v. Reno, 143 F. Supp.2d 389,
391 (S.D.N.Y. 2001) (citation omitted); see also
Bryant v. New York State Dep't of Corr. Serv., 146 F. Supp.2d 422,
424-425 (S.D.N.Y. 2001) (court may accept portions of the
report to which no objections have been made if it is "not
facially erroneous"). The Court is required to make a de novo
determination as to the aspects of the Report to which objections
are made. United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir. 1997). If the party makes only conclusory or general
objections, or simply reiterates the original arguments, however,
the Court will review the Report strictly for clear error. See
United States ex rel. Casa Redimix Concrete Corp. v. Luvin
Construction Corp., 00 Civ. 7552 (HB), 2002 WL 31886040, at *1
(S.D.N.Y. Dec. 27, 2002); Camardo v. General Motors Hourly-Rate
Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992);
Chabrier v. Leonardo, No. 90 Civ. 0173 (PKL), 1991 WL 44838, at
*1 (S.D.N.Y. Mar. 26, 1991); Schoolfield v. Dep't of Corr., No.
91 Civ. 1691 (JL), 1994 WL 119740, at * 2 (S.D.N.Y. Apr. 6,
1994). Objections to a Report and Recommendation "are to be
specific and are to address only those portions of the proposed
findings to which the party objects." Camardo, 806 F. Supp. at
381-382.

The Court has considered thoroughly the Respondent's objections
to Judge Fox's Report. Although Judge Fox ultimately denied
Petitioner's application for habeas corpus relief finding
Petitioner's arguments meritless, Respondent contends that a
state procedural bar should have precluded any federal habeas
corpus review. In light of Respondent's objections, the Court
reviews the Report and Recommendation de novo.

This Court finds that the Report by Judge Fox, who determined
that the habeas petition was not procedurally barred yet was meritless, was an
appropriate determination. The trial court's denial of the
Petitioner's motion to set aside the verdict without holding an
evidentiary hearing was not sufficient to clearly impose a
procedural bar. According to the Second Circuit, a state court
judgment is procedurally barred from federal review only if it is
based on a rule "firmly established and regularly followed" in
that state. Cotto v. Herbert, 331 F.3d 217, 239-241 (2d Cir.
2003) (internal citation omitted). Judge Fox concluded that the
trial court's denial of an evidentiary hearing following a motion
to set aside a verdict based on jury bias is not the uniform
practice in the state of New York when conflicting factual
allegations exist. See People v. Tokarski, 578 N.Y.S.2d 751
(App. Div. 4th Dep't 1991) (holding that the trial court must
conduct a hearing on a motion to set aside a verdict for juror
misconduct when conflicting factual allegations exist); People
v. Paulick, 615 N.Y.S.2d 159 (App. Div. 4th Dep't 1994)
(finding that conflicting factual allegations warrant a hearing
rather than sole reliance on counsel's affidavits).

Respondent asserts that NYCPL § 330.40(2) provides an
independent and adequate state ground for precluding federal
habeas corpus review. Relying on the Second Circuit's recent
decision in Cotto, Respondent focuses primarily on the three
criteria outlined in the opinion to assist the court in
determining the adequacy of a procedural bar in precluding
federal habeas review. Cotto, 331 F.3d at 240. Though the court
in Cotto does partly rely on three considerations to determine
whether a procedural bar exists, it does not exclusively decide
the case based on these factors and instead holds that the state
court judgment must be based on a "firmly established and
regularly followed" rule. Id. It is this prerequisite that
Judge Fox finds lacking to preclude federal habeas review. Respondent's analysis of Smart v. Scully, 787 F.2d 816 (2d
Cir. 1986), is also misguided. In a case similar to the instant
matter, the court in Smart indicates that a petitioner may not
be precluded from federal habeas corpus review solely based on
insufficient sworn allegations. The Second Circuit held that,
although the Petitioner failed to comply completely with the
requisite procedure, the pleading was sufficient to notify the
Court of his constitutional claim. Id. at 820. Since the state
court had knowledge of the alleged violation, the state court's
denial of the motion was found not to be an adequate and
independent state ground for preclusion of federal habeas review.
Id. Respondent here claims that Petitioner's allegations were
not sufficient to notify the state trial court of the alleged
violations. (Resp. Mem. of Law, at 2-3) (citing Taus v.
Senkowski, 02 civ. 4492 (JBW), 2003 WL 22838764 (E.D.N.Y. Nov.
26, 2003) (holding that a procedural bar precluded federal habeas
review of the trial court's decision to set aside the jury
verdict without a hearing because the motion did not contain
sufficient affidavits from someone with personal knowledge of the
facts alleged); People v. Bradley, 685 N.Y.S.2d 357 (App. Div.
4th Dep't 1999) (finding that federal habeas review was
precluded because Petitioner's motion was only supported by
hearsay)). However, as noted by Judge Fox below, Petitioner's
sworn allegations were sufficient to comply with NYCPL § 330.40
requirements and put the state court on notice of Petitioner's
constitutional claims. Furthermore, it is within this Court's
discretion to grant habeas review in situations where the
procedural default is not sufficient to automatically preclude
federal review. Accordingly, this Court finds that trial court's
denial of the Petitioner's motion was not procedurally barred
from federal habeas corpus review.

Because the state court did not apply a rule that was firmly
established and regularly followed, there was no independent and adequate state
ground for denying federal habeas review. Therefore, it was not
improper for Judge Fox to review the merits of the petition. In
any event, Judge Fox found the petition to be meritless, and
Respondent does not object to such finding.

The Court finds no clear error in Judge Fox's review of the
merits. Based on the Court's de novo review as to
Respondent's objections, as well as review for clear error as to
the merits of the petition, the Court adopts the Report and
Recommendation in its entirety. Accordingly, the petition for
writ of habeas corpus is denied.*fn1

Petitioner may not appeal this order unless "a circuit justice
or judge issues a certificate of appealability." 28 U.S.C.A. §
2253(c)(1) (West 2002). A certificate will be granted "if the
applicant has made a substantial showing of the denial of a
constitutional right." 28 U.S.C.A. § 2253(c)(2) (West Supp.
2003); see generally United States v. Perez,
129 F.3d 255, 259-60 (2d Cir. 1997) (discussing the standard for issuing a
certificate of appealabilty). The Court finds that Petitioner
will not be able to sustain this burden. Thus, the Court declines
to issue a certificate of appealability. The Court certifies
pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this
order would not be taken in good faith. See Coppedge v. United
States, 369 U.S. 438, 444 (1962). Magistrate Judge Fox's Report follows.

SO ORDERED.

TO: THE HONORABLE LAURA TAYLOR SWAIN, UNITED STATES DISTRICT
JUDGE

I. INTRODUCTION

Before the Court is Rafael Agosto's ("Agosto") petition for a
writ of habeas corpus made pursuant to 28 U.S.C. § 2254.
Petitioner alleges that his confinement by New York state is
unlawful because: (1) the trial court's failure to hold an
evidentiary hearing before ruling on his motion to set aside the
verdict on the ground of juror bias violated his Fourteenth
Amendment right to due process and his Sixth Amendment right to a
fair trial; and (2) the New York state statute governing a motion
to set aside a verdict prior to sentencing is unconstitutional
because it provides no remedy for an allegation of juror bias
and, thus, deprives criminal defendants like the petitioner of
their right to due process in violation of the Fourteenth
Amendment.

The respondent opposes the petitioner's application for habeas
corpus relief on the ground that the petitioner's claim
concerning the denial of his motion to set aside the verdict is
barred from habeas corpus review because the trial court's
decision in this matter rested on an adequate and independent
state law ground. Alternatively, respondent contends, the
petitioner's claims are meritless.

For the reasons set forth below, I recommend that the petition
be denied.

II. BACKGROUND

On the evening of June 4, 1993, a shooting incident occurred
involving Agosto and Abraham Smith ("Smith"). The incident took
place in the courtyard of the Castle Hill housing project in the
Bronx and resulted in the death of Smith and a seven-year-old
child, Joseph Washington ("Washington"), who was playing in the
courtyard at the time, and who was struck by a passing bullet. A
second child, Edwin Stuart, Jr. ("Edwin"), who also was playing
in the courtyard, sustained a bullet wound to his spine and was
permanently paralyzed as a result.

At the time of the shooting, Edwin resided with his father,
Edwin Stuart, Sr., and his mother, Donna Goodall ("Goodall"), at
2225 Lacombe Avenue, Bronx, New York, and petitioner resided at
535 Havermeyer Avenue, Bronx, New York. The courtyard in which
the shooting incident took place is between the building located
at 2225 Lacombe Avenue and the building located at 535 Havermeyer
Avenue.

The evidence adduced at trial established that on June 4, 1993,
shortly before seven o'clock in the evening, Agosto emerged from
behind the building at 535 Havermeyer Avenue, displayed a gun and
opened fire at Smith. In addition, the evidence showed that
Smith, although he returned gunshots, fell to the ground mortally
wounded. Furthermore, the evidence established that petitioner,
in firing at Smith, killed Washington and seriously wounded
Edwin.

By an indictment filed on June 24, 1993, a Bronx County grand
jury charged petitioner with four counts of murder in the second
degree (N.Y. Penal Law § 125.25[1], [2]), attempted murder in the
second degree (N.Y. Penal Law § 110.00 & 125.25[2]), two counts
of assault in the first degree (N.Y. Penal Law § 120.10[1], [3]),
criminal possession of a weapon in the second degree (N.Y. Penal
Law § 265.03), criminal possession of a weapon in the third
degree (N.Y. Penal Law § 265.02[4]), and reckless endangerment in
the first degree (N.Y. Penal Law § 120.25). The case proceeded to
a trial by jury in New York State Supreme Court, Bronx County.
The jury found Agosto guilty of two counts of murder in the
second degree, assault in the first degree, and criminal
possession of a weapon in the second degree.

After his conviction and prior to sentencing, petitioner
learned from Gerais Wright ("Wright"), a witness who had
testified for the defense, that one of the jurors, Jesse Wilson
("Wilson"), was familiar to him. Wright is a former resident of
535 Havermeyer Avenue in the Castle Hill housing project. After
he testified at petitioner's trial, Wright realized that he
recognized Wilson because Wilson was the uncle of a young woman,
Josephine Wilson ("Josephine"), whom Wright had dated several
years earlier. At the time that Wright knew her, Josephine
resided with her mother, Antoinette Wilson ("Antoinette"), at
2225 Lacombe Avenue in the Castle Hill housing project. Wright
also recalled that Josephine had told him that Goodall, the
mother of Edwin, was her godmother.

On December 13, 1994, petitioner moved, pursuant to New York
Criminal Procedure Law ("CPL") § 330.30, to set aside the verdict
on the ground of improper conduct by a juror. In his affidavit in
support of the motion, the defense attorney averred that Wilson
was knowledgeable about the shooting incident in which petitioner
participated and the place where it occurred, as well as certain
potential witnesses at trial, but that he failed to disclose his
knowledge of these matters during voir dire.

The trial court initially denied petitioner's motion, but
subsequently recalled its decision. Thereafter, petitioner submitted an amended motion and
an affidavit from Wright in which he described his relationship
with the Wilson family, averred that Edwin and the Stuart family
were neighbors of the Wilsons, and stated that, after testifying
at petitioner's trial, he recognized one of the jurors to be
Wilson. Petitioner also submitted a second affidavit from Wright
in support of his motion to set aside the verdict. Wright's
second affidavit provided additional information concerning the
circumstances under which he met Wilson, and also corrected
certain statements contained in the first affidavit.*fn2

In opposition to the motion, the prosecution submitted
affidavits from Wilson and Antoinette. Wilson, in his affidavit,
stated that his sister, Antoinette, had lived in the Castle Hill
housing project until 1991, but that he was not certain which
building she had lived in, only that she had lived on one of the
lower floors. However, Wilson denied ever having seen Edwin or
his father, either before or after petitioner's trial. He stated
further that he had seen Edwin and his father only when they were
testifying at trial, that he had never discussed petitioner's
case with anyone, including his sister, Antoinette, and that he
had seen Wright only during the trial. He averred, moreover, that
his "verdict in this case was based solely upon the evidence and
the testimony presented in the courtroom and on nothing else."
Antoinette, in her affidavit, stated that she was Wilson's sister
and that she knew Edwin and his parents, but that her
relationship was mainly with Edwin's mother, Goodall. She stated
further that Wright had dated her daughter, Josephine, that on
December 14, 1994, she learned that Wilson had been on jury duty, and that she had not discussed petitioner's shooting incident
with her brother until that date. Antoinette stated, moreover,
that "[i]n no way did [she] influence or attempt to influence,
[her] brother . . . Wilson's verdict."

Petitioner alleges that, based on the information contained in
the affidavits of Wright, Wilson and Antoinette, important facts
remained in dispute at the time petitioner made his CPL § 330.30
motion. However, according to petitioner, the trial court
"refused to hold an evidentiary hearing to resolve these factual
disputes and determine whether . . . Wilson has been able to
render an impartial verdict."

After petitioner made his CPL § 330.30 motion, the trial court
ordered that the minutes of the jury voir dire be transcribed
and made available to counsel for both parties. Thereafter, on
March 15, 1995, a bench conference was held for the purpose of
giving counsel for petitioner an opportunity to inform the trial
court whether he intended to submit additional documents in
support of petitioner's motion. At that conference, the defense
attorney stated: "I have reviewed the minutes in total and there
is nothing new that I can add to it." The trial judge then asked:
"In other words, you find nothing in the minutes to suggest that
Mr. Wilson has asked any question to which he even arguably
misrepresented some circumstance, correct." The defense attorney
replied: "That is correct. I had not found that."

The defense attorney then went on to say that there was a
"potential additional situation concerning a witness . . . [who]
had something to do with the incident who may be able to give
information indicating first hand that . . . Wilson did in fact
socialize with the student to some extent."

In his memorandum of law in support of his petition for a writ
of habeas corpus, petitioner states that "[p]resumably the student referred to
[during the bench conference] is . . . Wright, the defense
witness who apprised defense of the relationship between the
Wilson and Stuart families." Thus, according to petitioner, "the
trial court was apprised of additional information regarding
. . . Wilson that suggested partiality, but ignored the necessity
for a full hearing."

On March 20, 1995, the trial court denied petitioner's motion
to set aside the verdict, finding that "defendant's moving papers
do not contain sworn allegations of fact demonstrating improper
conduct by a juror, a ground necessary for relief."

A judgment of conviction was rendered on March 24, 1995, and
petitioner was sentenced to concurrent indeterminate terms of 20
years to life imprisonment for the first murder count, 25 years
to life imprisonment for the second murder count, 5 to 15 years
imprisonment for the assault count, and 5 to 15 years
imprisonment for the weapons possession count.

Agosto appealed from his conviction to the New York State
Supreme Court, Appellate Division, First Department, claiming,
inter alia, that his rights to due process and an impartial
jury were violated by the trial court's failure to conduct an
evidentiary hearing at which the issue of juror bias could be
fully explored. Petitioner also argued, in the alternative, that
sufficient evidence existed on the record to impute bias to
Wilson and order a new trial. Petitioner's conviction was
unanimously affirmed. See People v. Agosto, 248 A.D.2d 301,
670 N.Y.S.2d 463, 464 (App. Div. 1st Dep't 1998). In affirming
the trial court's denial, without a hearing, of petitioner's
motion to set aside the verdict on the ground of unreported juror
bias, the Appellate Division stated that the "[d]efendant's
claimed `web' of family relationships was remote and
speculative." Id. at 301, 464. On August, 19, 1998, the New York Court of Appeals denied
petitioner's application for leave to appeal. See People v.
Agosto, 92 N.Y.2d 892, 680 N.Y.S.2d 56 (1998). The instant
application for a writ of habeas corpus followed.

III. DISCUSSION

Juror Bias

The respondent contends that the trial court's dismissal of
petitioner's motion to set aside the verdict was based on an
adequate and independent state law ground and, therefore, absent
a showing of cause and prejudice, which the petitioner has not
demonstrated, the claim is barred from federal habeas corpus
review. Petitioner maintains that he effectively and
substantially complied with the relevant provisions of New York's
criminal procedure law and, furthermore, even if he failed to
comply with those provisions, the trial court's ruling denying
his motion to set aside the verdict did not rest on an adequate
and independent state law ground because the state had no
legitimate interest in applying the procedural rule at issue
under the circumstances.

A. Adequacy of State Procedural Dismissal

A federal court may not review a question of federal law
decided by a state court if the state court's decision rested on
a state law ground, be it substantive or procedural, that is
independent of the federal question and adequate to support the
judgment. See Coleman v. Thompson, 501 U.S. 722, 729, 111 So.
Ct. 2546, 2553-54 (1991). This doctrine applies not only to
direct review of state court judgments, but also to federal
habeas corpus petitions. See id.; Harris v. Reed,
489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989); Wainwright v. Sykes,
433 U.S. 72, 81, 97 S.Ct. 2497, 2503-04 (1977). An exception
obtains only if the petitioner "can demonstrate cause for the default and actual prejudice as a
result of the alleged violation of federal law, or demonstrate
that failure to consider the claims will result in a fundamental
miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct.
at 2565. In addition, no bar to federal habeas corpus review
exists "unless the last state court rendering a judgment in the
case clearly and expressly states that its judgment rests on a
state procedural bar." Harris, 489 U.S. at 263, 109 S.Ct. at
1043.

In denying petitioner's motion to set aside the verdict on the
basis of juror misconduct, the trial court found that
petitioner's moving papers failed to meet the requirements of CPL
§§ 330.30 and 330.40, because they did not contain sworn
allegations of fact demonstrating improper juror conduct.
Specifically, the trial court relied upon CPL §§ 330.30(2),
330.40(2)(a) and 330.40(2)(e).

CPL § 330.30(2) provides as follows:

At any time after rendition of a verdict of guilty
and before sentence, the court may, upon motion of
the defendant, set aside or modify the verdict or any
part thereof upon the following grounds . . . [t]hat
during the trial there occurred, out of the presence
of the court, improper conduct by a juror, or
improper conduct by another person in relation to a
juror, which may have affected a substantial right of
the defendant and which was not known to the
defendant prior to the rendition of the verdict.

CPL § 330.40 describes the procedure to be followed in making a
motion to set aside a verdict based upon, inter alia, juror
misconduct:

The motion must be in writing and upon reasonable
notice to the people. The moving papers must contain
sworn allegations, whether by the defendant or by
another person or persons, of the occurrence or
existence of all facts essential to support the
motion. Such sworn allegations may be based upon
personal knowledge of the affiant or upon information
and belief, provided that in the latter event the
affiant must state the sources of such information
and the grounds of such belief.
CPL § 330.40(2)(a).

CPL § 330.40 also identifies the circumstances under which a
trial court may deny a motion to set aside a verdict without
holding an evidentiary hearing. They are: "(i) The moving papers
do not allege any ground constituting a legal basis for the
motion; or (ii) The moving papers do not contain sworn
allegations of all facts essential to support the motion." CPL §
330.40(2)(e).

The Appellate Division, citing CPL § 330.40(2)(e)(ii), affirmed
the trial court's ruling. See Agosto, 248 A.D.2d at 301, 670
N.Y.S.2d at 464. The New York Court of Appeals then denied
petitioner leave to appeal the Appellate Division's decision
without issuing an opinion, thereby creating the presumption that
it adopted the judgment on the same grounds. See Ylst v.
Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 2594 (1991). The
respondent contends that in light of the state trial court's
reliance on a procedural state law ground, and the subsequent
findings of the state appellate courts, Agosto's claim concerning
the denial of his CPL § 330.30 motion is procedurally barred.

In most cases, a state procedural bar constitutes an adequate
and independent state law ground that is sufficient to preclude
federal habeas corpus review. See Rosa v. Herbert,
277 F. Supp.2d 342, 351 (S.D.N.Y. 2003). "In exceptional cases,
however, an `exorbitant application of a generally sound rule'
may affect the adequacy and independence of the state procedural
ground, and allow the United States district court to consider
the merits of a constitutional claim." Id. (quoting Lee v.
Kemna, 534 U.S. 362, 376, 122 S.Ct. 877, 885 [2002]); see
also Bell v. Poole, No. 00 Civ. 5214, 2003 WL 21244625, at *9
(E.D.N.Y. Apr. 10, 2003) ("The mere invocation of a procedural
bar does not . . . automatically preclude review in this court.").

The Second Circuit Court of Appeals has stated that a
procedural bar is adequate to support a state court judgment only
if it is based on a rule that is "firmly established and
regularly followed" by the state in question. Cotto v. Herbert,
331 F.3d 217, 239-41 (2d Cir. 2003); see also Garcia v.
Portuondo, No. 03 Civ. 2458, 2003 WL 22510390, at *4-5 (S.D.N.Y.
Nov. 4, 2003). Thus, the parties to an action must have notice of
the state procedural rule and the rule must be applied
consistently in similar circumstances. See Bell, 2003 WL
21244625, at *9. Furthermore, a state procedural rule must serve
a legitimate state interest. See Rosa, 277 F. Supp.2d at
351; Smart v. Scully, 787 F.2d 816, 820 (2d Cir. 1986).
However, "the adequacy of a state procedural bar is determined
with reference to the particular application of the rule; it is
not enough that the rule generally serves a legitimate state
interest." Cotto, 331 F.3d at 240 (quoting Lee, 534 U.S. at
387, 122 S.Ct. at 891) (internal quotation marks omitted).
Therefore, an inquiry into whether the application of a
procedural rule is "firmly established and regularly followed" in
the specific circumstances presented in a case includes "an
evaluation of the asserted state interest in applying the
procedural rule in such circumstances." Id.

In this case, it does not appear that the state trial court's
decision to deny petitioner's CPL § 330.30 motion without holding
a hearing is either firmly established or regularly followed by
the New York courts. Rather, where, as here, the parties have
presented conflicting factual allegations, it is customary to
hold an evidentiary hearing prior to making a determination on a
motion to set aside a verdict. Thus, in People v. Tokarski,
178 A.D.2d 961, 578 N.Y.S.2d 751 (App. Div. 4th Dep't 1991), the
Appellate Division found that the trial court had erred by
denying summarily defendant's motion to set aside the verdict on
the ground of juror misconduct where, among other things, the defendant
submitted an affidavit from his sister in which she averred that
she was acquainted with one of the jurors and the prosecution
presented the sworn statement of the juror denying that he knew
the defendant's sister. The court stated: "[w]hen confronted with
conflicting factual averments, the court must hold a hearing to
resolve the issue." Id. at 961, 751. Similarly, in People v.
Paulick, 206 A.D.2d 895, 896, 615 N.Y.S.2d 159 (App. Div.
4th Dep't 1994), the court found that it was error to deny
the defendant's motion to set aside the verdict without a
hearing, explaining that "[w]hen confronted with evidence
suggesting possible juror misconduct, it is the better practice
for the trial court to hold a hearing rather than to determine
the issue on affidavits of counsel."

In People v. Rodriguez, 100 N.Y.2d 30, 760 N.Y.S.2d 74
(2003), the New York Court of Appeals affirmed the trial court's
denial of the defendant's motion to set aside the verdict based
on juror misconduct, but noted that the trial court had
determined to deny the motion only after holding a hearing. In
that case, a juror had intentionally concealed, during voir
dire, his friendship with a county prosecutor who was not
involved in the prosecution of the defendant's case. The trial
court held a hearing at which testimony was taken from the juror
and the county prosecutor. The court stated: "Based on this
testimony, the trial court determined that although [the juror's]
failure to disclose the friendship constituted misconduct, it was
harmless and did not result in substantial prejudice to
defendant." Id. at 36, 78. See also People v. Mercado,
290 A.D.2d 237, 735 N.Y.S.2d 125, 126 (App. Div.1st Dep't
2002) ("[D]efendant is entitled to an evidentiary hearing at
which he may attempt to establish that the juror's failure to
disclose his conviction resulted in actual bias."); People v.
Surdis, 275 A.D.2d 553, 556, 711 N.Y.S.2d 875, 878-879 (App.
Div. 3rd Dep't 2000) (affirming the trial court's denial of defendant's motion to set aside the verdict where, after
holding a hearing in the matter, the trial court found that
defendant failed to meet his burden of proving juror misconduct
by a preponderance of the evidence).

In the case at bar, the petitioner submitted an affidavit from
Wright, a defense witness, in which Wright averred that, on
several occasions, he had met the juror, Wilson, at the home of
Wilson's sister, Antoinette. In the affidavit, Wright also
averred that the Wilson family, especially Antoinette, were
neighbors and close friends of the Stuart family, including
Edwin, a victim of the shooting in which petitioner was involved,
and Edwin's mother and father. In addition, Wright alleged that
Josephine, Wilson's niece and Wright's girlfriend at the time,
used to refer to Edwin's mother as her godmother and to Edwin and
his brothers as "her little godbrothers." In opposition to
petitioner's motion, the prosecution presented, inter alia,
the affidavit of Wilson in which he denied that he knew Edwin or
his family and also denied having seen Wright either before or
after petitioner's trial. In light of the parties' contradictory
factual allegations, the state court's decision to resolve the
disputed issues without a hearing does not appear to comport with
the practice of New York courts in similar cases.

Moreover, the application of the state procedural rule in this
case does not appear to have served a substantial or legitimate
state interest. In Smart, the Second Circuit Court of Appeals,
in circumstances similar to those presented here, found that a
habeas corpus petitioner's failure to comply with a provision of
New York's criminal procedure law, CPL § 440.30, did not
constitute a procedural default such that, in the absence of a
showing of cause or prejudice, the petitioner's claim was barred
from federal habeas corpus review. In that case, the petitioner's
motion, made pursuant to CPL § 440.10, to withdraw a plea of
guilty, was denied by the trial court, without an evidentiary hearing, because the motion papers
did not contain sworn allegations concerning all the essential
facts necessary to support the petitioner's legal claim, as
required by CPL § 440.30.*fn3 See Smart, 787 F.2d at
816. Petitioner then raised his claim in a petition for a writ of
habeas corpus filed in the United States district court. The
district court ruled that it could not review the claim on the
merits because it was procedurally barred and the petitioner had
not made the requisite showing of cause and prejudice.

The Second Circuit reversed the district court's ruling,
finding that the petitioner's failure to submit the affidavit
required by CPL § 440.30 was not, in itself, an independent and
adequate state ground sufficient to foreclose federal review of
an alleged constitutional violation. The court stated: "Smart's
pleading, while not in compliance with state procedure, notified
the court as to his constitutional claim and gave the state court
a clear opportunity to address his claim or allow him to
replead." Smart, 787 F.2d at 820. The court found that, under
the circumstances, the state had no substantial or legitimate
interest in denying the petitioner an opportunity to replead his
motion. See id.

The requirements set forth in CPL § 330.40, the provision at
issue here, are nearly identical to those set forth in CPL §
440.30, the provision at issue in Smart. Both provisions
require that the relevant motion be in writing and upon
reasonable notice to the people, and that the moving papers contain sworn allegations of the existence or
occurrence of facts needed to support the motion, whether by the
defendant or by another person or persons. In this case, as in
Smart, the allegations presented in support of the motion,
including Wright's and those of defense counsel, "notified the
court as to [petitioner's] constitutional claim and gave the
state court a clear opportunity to address his claim or allow him
to replead." Smart, 787 F.2d at 820. Thus, it does not appear
that the state in this instance had a legitimate or substantial
interest in denying petitioner's motion to set aside the verdict
without a hearing on the grounds of unreported juror bias. As in
Smart, the legitimate interest in this regard, that is, the
interest in generating truthful allegations in such motions, was
not served by denying petitioner an opportunity to demonstrate
actual bias through an evidentiary hearing. See id.; see
also Rosa, 277 F. Supp.2d at 351-54 (applying Smart in
comparable circumstances and finding that the state court's
dismissal of petitioner's § 440.10 motion did not represent an
adequate and independent state ground foreclosing federal habeas
corpus review).

Furthermore, in this case, petitioner's motion papers
substantially and effectively complied with the requirements set
forth in CPL § 330.40 in that, among other things, they included
as an attachment sworn allegations by Wright of the "existence or
occurrence" of facts supporting the motion. Under New York law, a
defendant's motion made pursuant to CPL § 330.30 is deemed to
contain "sworn allegations of all facts essential to support the
motion" where the affiant swears as to the juror misconduct he or
she allegedly has observed or heard. See People v. Smith,
187 A.D.2d 365, 368-369, 590 N.Y.S.2d 191, 193-194 (App. Div. 1st
Dep't 1992). Such allegations are neither hearsay allegations nor
speculation. See id. Moreover, while an affidavit or
affirmation of counsel containing such allegations might not be
sufficient to establish that a juror or jurors actually had engaged in
misconduct, or that any juror had been impermissibly biased by
any alleged misconduct, nevertheless, the motion papers in such a
case are sufficient to comply with CPL § 330.40(2)(e)(ii). See
id.

In this case, the defendant presented the sworn allegations of
a defense witness about what he had observed concerning the
purported relationship of a juror to a victim of the crime for
which the petitioner was convicted. The allegations, while not
sufficient to establish misconduct or impermissible bias on the
juror's part, were neither hearsay nor, as the Appellate Division
concluded, "remote and speculative." The petitioner, therefore,
substantially and effectively complied with the requirements set
forth in CPL § 330.40.

Under the circumstances, the Court finds that the trial court's
denial, without an evidentiary hearing, of petitioner's motion to
set aside the verdict on the ground of juror bias is inadequate
to preclude federal habeas corpus review of this claim. See
Cotto, 331 F.3d at 247; Garcia, 2003 WL 22510390, at *5;
Rosa, 277 F. Supp.2d at 354. Accordingly, the Court must
address the merits of petitioner's claim that the denial of his
motion to set aside the verdict violated his constitutional
rights to due process and a fair trial.

B. The Merits of Petitioner's Claim

The Supreme Court has held that a defendant has a right to "a
fair trial by a panel of impartial, `indifferent' jurors." See
Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642 (1961).
Where there is private communication, contact or tampering with a
juror during a trial, the district court should hold a hearing to
determine whether such contact with a juror was harmful to the
defendant. See Remmer v. United States, 347 U.S. 227, 229-30,
74 S.Ct. 450, 451-52 (1954); see also Smith v. Phillips,
455 U.S. 209, 102 S.Ct. 940 (1982). However, courts are reluctant to "haul jurors in after they have reached a
verdict in order to probe for potential instances of bias,
misconduct or extraneous influences." United States v.
Ianniello, 866 F.2d 540, 543 (2d Cir. 1989) (quoting United
States v. Sun Myung Moon, 718 F.2d 1210, 1234 [2d Cir. 1983]).
Hence, the need for a post-verdict evidentiary hearing regarding
a juror's impartiality "arises only when the party alleging
misconduct makes an adequate showing of extrinsic influence to
overcome the presumption of jury impartiality." Id.; see
also Perez v. Manhattan Jeep Eagle, No. 92 Civ. 9521, 1997 WL
403458, at *5 (S.D.N.Y. July 17, 1997) ("The standard for
granting a post-trial jury hearing is when reasonable grounds for
investigation exist."). Moreover, the trial court has broad
discretion to determine whether an evidentiary hearing is
necessary, and that determination is reviewable only for abuse of
discretion. See Wheel v. Robinson, 34 F.3d 60, 65 (2d Cir.
1994).

In addition, in McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548, 104 S.Ct. 845 (1984), the Supreme Court
established a standard for determining when a new trial should be
granted based on a juror's dishonest answer to a question on
voir dire. The Court held that a petitioner "must first
demonstrate that a juror failed to answer honestly a material
question on voir dire, and then further show that a correct
response would have provided a valid basis for a challenge for
cause." Id. at 556, 850.

Furthermore, in a case such as this, where a state court has
adjudicated the merits of the claim raised in a federal habeas
corpus petition, 28 U.S.C. § 2254 informs that a writ of habeas
corpus may issue only if the state court's adjudication resulted
in a decision that: 1) was contrary to, or involved an
unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States; or 2) was
based on an unreasonable determination of the facts in light of the evidence presented in
the State court proceedings. See 28 U.S.C. § 2254(d); see
also Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495
(2000); Francis S. v. Stone, 221 F.3d 100 (2d Cir. 2000). In
addition, when considering an application for writ of habeas
corpus by a state prisoner, a federal court must be mindful that
any determination of a factual issue made by a state court is to
be presumed correct and the habeas corpus applicant has the
burden of rebutting the presumption of correctness by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1). In particular,
a state trial court's conclusion that a juror is capable of
rendering an impartial verdict is a factual determination that
may "be overturned only for manifest error." Patton v. Yount,
467 U.S. 1025, 1031, 104 S.Ct. 2885, 2889 (1984) (citation
omitted) (internal quotation marks omitted).

In this case, the petitioner has not made an adequate showing
of extrinsic influence to overcome the presumption of juror
impartiality. In his affidavit submitted in opposition to
petitioner's motion to set aside the verdict, Wilson denied ever
having seen Edwin, the shooting victim, or his father, except
when they appeared at the trial. Wilson also averred that he had
never discussed petitioner's case with anyone, including his
sister, and that he had seen Wright only during the trial.
Wright's statements to the contrary, for example, that Wilson had
close ties to the Stuart family and that he had previously met
Wilson at his sister's home, do not constitute evidence
sufficient to demonstrate juror bias, misconduct or extraneous
influences, such that an evidentiary hearing in the district
court is warranted in this case. Even if Wilson did come into
contact with the Stuart family, as Wright alleged, his connection
with that family was not intimate, but existed only through his
sister, and according to Antoinette, "[her] relationship with her
brother is not one of daily or weekly telephone contact."
Furthermore, Antoinette moved away from the Castle Hill housing project, where she had
known the Stuart family, in 1991, and in her affidavit she stated
that she had not seen Edwin's mother for three years. Thus,
petitioner has not shown that reasonable grounds exist for
granting his request for a hearing in the district court to probe
for potential juror bias.

In addition, as noted above, an investigation into juror bias
is within the broad discretion of the trial court. Here, there is
no evidence of abuse of that discretion. Although the state trial
court did not hold an evidentiary hearing in connection with
petitioner's motion to set aside the verdict, it conducted a
bench conference at which the transcript of the voir dire
proceeding was reviewed. At that time, defense counsel was asked
whether he discerned any impropriety in Wilson's conduct during
voir dire; in response, defense counsel stated that he did
not find any such impropriety. The trial court then made its
determination to deny petitioner's motion to set aside the
verdict on the basis of that inquiry and the affidavits submitted
in support of, and opposition to, the motion. While it is true
that, as discussed infra, the trial court's decision not to
hold an evidentiary hearing prior to making that determination
appeared not to comport with New York state practice in such
cases, nevertheless, the trial court's determination that there
was an insufficient showing to warrant setting aside the verdict
on the ground of juror bias is supported by the record. In any
event, even assuming that the trial court erred in failing to
hold a hearing concerning the allegations made by petitioner in
his motion, petitioner has failed to demonstrate that such action
caused him to suffer prejudice, and without proof of actual
prejudice, any possible error on the part of the trial court was
harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-38,
113 S.Ct. 1710, 1721-22 (1993).

Moreover, petitioner has not demonstrated that he was deprived
of his right to an impartial jury by Wilson's failure to disclose information during
voir dire. In United States v. Shaoul, 41 F.3d 811, 815-16
(2d Cir. 1994), the Second Circuit Court of Appeals, applying the
McDonough test, explained that juror dishonesty was the main
focus of the first prong of that test. Hence, the court stated, a
good faith failure to respond to a question, even if it were
mistaken or resulted in a false answer, would not form a basis
for a new trial. Rather, in order to satisfy this part of the
McDonough test, a petitioner must establish that a juror
deliberately gave a false answer. Id.

Petitioner claims that the prospective jurors' familiarity with
the Castle Hill housing project was a critical issue at trial and
that Wilson's failure, during voir dire, to reveal the fact
that his sister and niece had formerly lived at that location and
were friendly with the family of one of the victims, raised a
serious question regarding Wilson's impartiality as a juror.
Moreover, petitioner maintains, because Wilson failed to disclose
his relationship to the Stuart family, defense counsel was
deprived of an opportunity to strike Wilson from the jury for
cause.

The relevant portions of the voir dire proceeding involving
Wilson are as follows:

[ASSISTANT DISTRICT ATTORNEY ("ADA")]: Miss
Washington, Mr. Nieves, and Mr. Wilson, do you know
anybody that resides at 535 Havemeyer?

(Whereupon the prospective jurors respond no.)

ADA: Is there anyone on this jury that knows anybody,
doesn't have to be a close friend, but knows anyone
that lives at 535 Havemeyer[?]

(All the jurors shook their head[s] no.)

V. Tr. 469-70.*fn4 [ATTORNEY FOR THE DEFENDANT]: Anyone here familiar
with the Castle Hill projects, that area, that
location?

(No verbal response.)

. . . .

[ATTORNEY FOR THE DEFENDANT]: Mr. Wilson?

PROSPECTIVE JUROR: I went to Stevenson High School.
Graduated there.

V. Tr. 482-83.

As these excerpts from the transcript of the voir dire
proceeding make clear, although Wilson, in responding to the
questions posed to him, made no mention of his sister's previous
residence at the Castle Hill housing project or her relationship
to the Stuart family, he does not appear to have failed to answer
honestly. Wilson's response indicating that he did not know
anyone who lived at 535 Havermeyer was truthful: Wilson's sister
and niece had lived at 2225 Lacombe Avenue. Moreover, they had
moved from that location in 1991, approximately two years before
the shooting incident in question and approximately three years
before petitioner's trial. Additionally, Wilson's answer to the
question whether he was familiar with the Castle Hill housing
project area, namely, that he had attended and graduated from a
high school located in that area, has not been alleged to be a
false answer. Furthermore, the record in this case does not
support the conclusion that Wilson's failure to disclose such
connections as he may have had with the location of the shooting
or the family of one of the victims amounted to an attempt
deliberately to mislead the court or that Wilson spoke falsely in
his affidavit when he averred that his verdict "was based solely
upon the evidence and testimony presented in the courtroom and on
nothing else." Since petitioner has not sustained his burden under the first
prong of the McDonough test, the Court need not consider
whether there is evidence showing that a "correct" answer on
Wilson's part to the questions posed to him during voir dire
would have provided a valid basis for a challenge for cause. The
Court finds that the McDonough standard has not been satisfied
in this case.

Furthermore, the petitioner has not made any showing to
establish that the decision by the trial court, and by extension
the Appellate Division, that petitioner's right to a fair trial
by an impartial jury was not violated was: (i) contrary to or an
unreasonable application of clearly established federal law as
determined by the Supreme Court, or (ii) based on an unreasonable
determination of the facts in light of the evidence presented in
the state court proceedings. As discussed above, the trial court,
after a bench conference in which the minutes of the voir
dire proceeding were reviewed and upon consideration of
affidavits submitted by the parties, determined that petitioner
had failed to establish improper conduct by a juror. In this
case, petitioner has not presented anything more to the Court
from which it might find that petitioner's constitutional rights
to due process and a fair trial by a panel of impartial jurors
were violated. Moreover, petitioner has failed to present to the
Court clear and convincing evidence to rebut the presumption of
correctness that attached to the state courts' determination to
deny petitioner's motion to set aside the verdict on the ground
of juror bias or to show that the trial court's conclusion was
"manifest error." Therefore, under the circumstances, Agosto's
claim that the trial court's determination to deny his motion to
set aside the verdict was a violation of his constitutional
rights should be denied.

Constitutionality of State Statute Petitioner also claims that the New York state statute
governing a motion to set aside a verdict prior to sentencing is
unconstitutional because it provides no remedy for an allegation
of juror bias and, thus, deprives criminal defendants of their
right to due process in violation of the Fourteenth Amendment.
Having determined that petitioner is not entitled to the relief
he seeks by way of his application for a writ of habeas corpus,
the Court finds that an analysis of the constitutionality of the
state statute at issue here is not warranted and would not be
appropriate under the circumstances.

IV. RECOMMENDATION

For the reasons set forth above, the instant application for a
writ of habeas corpus should be denied.

V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties shall have ten (10) days
from service of this Report to file written objections. See also
Fed.R.Civ.P. 6. Such objections, and any responses to
objections, shall be filed with the Clerk of Court, with courtesy
copies delivered to the chambers of the Honorable Laura Taylor
Swain, 40 Centre Street, Room 426, New York, New York, 10007, and
to the chambers of the undersigned, 40 Foley Square, Room 540,
New York, New York, 10007. Any requests for an extension of time
for filing objections must be directed to Judge Swain. FAILURE TO
FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v.
Arn 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann,
9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson,
968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55,
57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d
Cir. 1983).

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